CKN17 v Minister for Immigration
[2018] FCCA 2822
•11 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKN17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2822 |
| Catchwords: MIGRATION – Protection visa – allegedly defective interpreting in tribunal – no evidence in this court of any such deficiency. |
| Legislation: Migration Act 1958, s.425 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Craig v State of South Australia (1995) 184 CLR 163 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 10 NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | CKN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1182 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 11 September 2018 |
| Date of Last Submission: | 11 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 11 September 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 5 June 2017 is dismissed.
The applicant pay the first respondent’s costs in the fixed sum of $5 000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1182 of 2017
| CKN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By application filed 5 June 2017, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made 12 May 2017 pursuant to which the tribunal affirmed a decision of the minister’s delegate not to grant the applicant the protection visa that he sought. The applicant sought the issue of constitutional writs contending that, in essence, complications arose during the tribunal hearing based on allegedly defective interpreting. In the passages that follow I have considered the grounds of application for judicial review and addressed them in detail.
Synopsis
For the reasons that follow, in my judgment this application for judicial review failed with the consequence that I dismiss this proceeding and order the applicant to pay the respondent’s costs.
Relevant factual setting
On 30 March 2016 the applicant arrived in Australia from Malaysia on an electronic travel authority (subclass 601) visa. On 7 June 2016 the applicant applied for a protection visa. He asserted that Australia owed him protection obligations on the basis that he was a member of the Bersih movement, the members of which were sought by the Malaysian Government following a collection of street demonstrations and that if he returned to Malaysia he would be jailed.
On 31 August 2016 the minister’s delegate refused to grant the applicant the protection visa he sought. Being dissatisfied with that decision, on 6 September 2016 the applicant applied to the Administrative Appeals tribunal for merits review of the delegate’s decision.
On 10 April 2017 the applicant was invited to attend a hearing before the tribunal scheduled for 5 May 2017. The hearing was duly convened on the scheduled date which the applicant attended assisted by a Malay interpreter.
During that hearing the applicant gave evidence that he was only an ordinary member of the Bersih movement who did not have a profile of interest with the Malaysian authorities, a matter recorded at paragraph 21 of the tribunal’s reasons. During the hearing before the tribunal, the applicant advanced an additional claim that if he were to be imprisoned in Malaysia he would be unable to provide for his family for whom he was the sole financial provider. In paragraph 15 of its reasons the tribunal recorded that his family consisted of his mother and two sisters, one of whom was disabled.
Before the tribunal the applicant contended that his problems were not political but were rather economic, later altering his evidence so that he claimed that his problems were both political as well as economic, upon which the tribunal pronounced at paragraph 28 of its reasons.
As mentioned above, on 12 May 2017 the tribunal affirmed the delegate’s decision. In essence, the tribunal did not accept that the applicant faced a real chance of serious harm or a real risk of significant harm in Malaysia. Its path of reasoning to those conclusions were recorded between paragraphs 36 and 39 of the tribunal’s reasons.
Relevantly paraphrased, the tribunal accepted that the applicant was faced with personal issues relating to his support for his family. In paragraph 36 of its reasons the tribunal accepted that the applicant had participated in political demonstrations organised by the Bersih movement in 2015. In paragraph 35 of its reasons the tribunal recorded that in view of country information from the Department of Foreign Affairs and Trade concerning political rallies in Malaysia, protestors faced a low risk of arrest when engaged in political rallies.
In paragraph 38 of its reasons the tribunal concluded that it did not accept that the applicant feared being detained by the authorities and it based that conclusion on the applicant’s own evidence that he had not been detained by police nor had the police sought his whereabouts by visiting his mother and sisters. The tribunal had regard to contemporary country information, especially information from the Department of Foreign Affairs and Trade.
In paragraph 39 of its reasons the tribunal concluded that based on the applicant’s own evidence he was merely a participant in demonstrations, he had not been sought by the police and that even if the applicant participated in future rallies there was only a remote chance of him being arrested or otherwise persecuted on account of his real or imputed opinion.
The applicant commenced this proceeding on 5 June 2017, as has been recorded above, by application which he personally prepared without the assistance of legal representation.
Understandably his grounds of review were not expressed in terms which attracted conventional expression in the form of jurisdictional error as expressed in the High Court decisions of Craig v State of South Australia[1] and Kirk v Industrial Court of New South Wales.[2] With errors in the original, his grounds of application were threefold as follows –
When the interview session which was held on 05th May, I was been given a chance to talk but due to my situation which was so nervous and under pressure so it so hardly for me to talk and I can't remember any point at all.
The interpreter was not explained very clearly to me about the question that been ask by the AAT officer, so it was a bit confusing.
The AAT officer just used a fact which they get from the internet due to my case. But what they find out just the surface of the info, but not from the actual situation that was happening which can harm my life when I go back. Infact I also as a back bones of my family which all was count on me, as my mom was a single mother.
[1] (1995) 184 CLR 163
[2] (2010) 239 CLR 531
Recognising that the English language was not the applicant’s first language, I make no criticism of the composition of his grounds of review. I have applied the most beneficial construction available to his grounds of review. On behalf of the minister a like beneficial construction of the grounds of review was adopted. That said, in my view, none of the grounds were made out.
Let me take each in turn.
Ground one
Under the first ground, the applicant contended that in the tribunal he was under pressure and nervous and therefore it was difficult for him to effectively communicate his contentions. He did not adduce any evidence of a medical condition that may have rendered him unable to more meaningfully participate in the interview, as was canvassed in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs.[3] On behalf of the minister, it was submitted that the invitation to appear before the tribunal must be real and meaningful and where an applicant is unfit or unable to give evidence on account of a medical condition, such that the provisions of s 425 of the Migration Act are subverted, a breach of that section may occur.
[3] [2003] FCA 1559
The applicant did not adduce any evidence about the events before the tribunal. Ordinarily, where an applicant seeks to impugn the events before the tribunal a transcript of the tribunal proceeding is put into evidence. That was not done in this case. It was not possible therefore for me to assess whether he was denied a real and meaningful opportunity to participate in the proceeding. It must not be forgotten that the applicant has the onus of establishing jurisdictional error, as was held in Minister for Immigration and Citizenship v SZGUR.[4]
[4] (2011) 241 CLR 594
The onus is on the applicant to establish the relevant factual foundation for his application for judicial review, as was held by the Full Court of the Federal Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs.[5] The minister is not required to make out the applicant’s case for him, as was held by the High Court in Abebe v Commonwealth of Australia.[6]
[5] [2005] FCAFC 117
[6] (1999) 197 CLR 510
I was not persuaded that ground one had been established in the circumstances of this case.
Ground two
Under the second ground, the applicant contended that the interpreter did not explain very clearly to him about the questions asked by the tribunal member. The applicant asserted that “it was a bit confusing”. In certain circumstances mistranslations that could have been significant to the outcome may found the existence of jurisdictional error. That much was held by the Federal Court in SZSEI v Minister for Immigration and Border Protection.[7] Ultimately, errors in translation or translation failures generally may amount to jurisdictional error depending on the material unfairness thereby caused, as was held in SZRMQ v Minister for Immigration and Border Protection.[8] As mentioned above, the applicant did not put into evidence in this case a transcript of the proceeding before the tribunal. It was not possible to say, therefore, whether there had been any deficiencies in the translation before the tribunal. It fell to the applicant to make out this ground and he failed to do so.
[7] [2014] FCA 465
[8] [2013] FCAFC 142
Ground two failed.
Ground three
Under ground three, the applicant contended that the tribunal based its information in this case on information derived from the internet. Strictly speaking that was not correct as the tribunal based much of its country information on material obtained from the Department of Foreign Affairs and Trade.
So far as country information was concerned, being the matter relevant to ground three, several things must be said. First, as was held in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs,[9] the tribunal is entitled to give country information such weight as the tribunal thinks fit. Next, the choice and interpretation of country information is a factual matter for the tribunal alone, as was held in NBKT v Minister for Immigration and Multicultural Affairs.[10] Third, the court undertaking judicial review is not entitled to review the merits of the tribunal’s decision insofar as it bears upon country information, as was held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[11] along with other cases.
[9] [2004] FCAFC 10
[10] (2006) 156 FCR 419
[11] (1996) 185 CLR 259
To the extent that the applicant was in reality inviting a merits review under the guise of judicial review, it has long been established that judicial review may not be used as a basis for the re-evaluation of factual findings. A long line of indisputable authority has so held including Chan Yee Kin v Minister for Immigration and Ethnic Affairs,[12] Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[13] as mentioned above Attorney-General (NSW) v Quin,[14] Australian Broadcasting Tribunal v Bond[15] and other cases.
[12] (1989) 169 CLR 379
[13] (1996) 185 CLR 259
[14] (1990) 170 CLR 1
[15] (1990) 170 CLR 321
Today I asked the applicant to tell me in his own words what he said the tribunal did wrong in this case. He again repeated that the tribunal only paid attention to information derived from the internet and that it did not properly have regard to background information of the state of affairs “on the ground” in Malaysia. That again appeared to invite me to undertake an impermissible merits review. He also said that his partner was pregnant and he hoped to get the best result possible out of this application. That did not amount to jurisdictional error.
Conclusion
For the above reasons, I dismiss the application and order the applicant to pay the minister’s costs fixed in the sum of $5 000.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 2 October 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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